PRACTICE AND PROCEDURE – Subpoena – Claim for public interest immunity – Production and inspection objected to – Balancing of claim for public interest immunity against the public interest in the administration of justice – Whether judge below erred in failing to inspect the documents.
ADMINSTRATIVE LAW – Judicial review – Order 56 Supreme Court (General Civil Procedure) Rules 2005 – Decision of Judicial Registrar in Magistrates’ Court – Decision set aside – Order in nature of certiorari inutile – Re-hearing of charges – Order in the nature of mandamus unavailable – Adjournment application refused.
PRACTICE AND PROCEDURE – Pleadings – Strike out of the whole or specified parts of pleadings – Separate questions – Supreme Court (General Civil Procedure) Rules 2005, Rules 23.02, 47.04 – Civil Procedure Act 2010, Section 7.
EVIDENCE – Disclosure of documents — Public interest immunity — Claim of immunity over Cabinet documents — What constitutes Cabinet documents — Relevance and importance to issues in the proceeding — Documents not relevant, or sufficiently relevant, and do not have important bearing on issues in the case — Balancing exercise between interest in non-disclosure and interest in access for litigation — Relevant factors — Evidence Act 2008 (Vic) s 130.
EVIDENCE – Admissibility – Exclusion of evidence of matters of state – Whether comity required the rejection of evidence – Extraterritorial application of foreign law
EVIDENCE – Discretion to exclude improperly or illegally obtained evidence – Whether orders of foreign court resulted in improper or illegal obtaining of evidence
EVIDENCE – Contempt of court – Whether tender of evidence a contempt due to manner obtained
EVIDENCE – Public / State interest immunity – subpoenaed documents prepared to brief Minister in relation to possible rezoning of a Planning Scheme under the Planning and Environment Act 1987 (Vic) – production and inspection which may prejudice the proper functioning of government – Evidence Act 2008 (Vic) s 130 – confidentiality – client legal privilege – relevance
EVIDENCE – Discovery of documents – Public interest immunity – Claim of immunity over Cabinet documents – What constitutes Cabinet documents – Balancing exercise between interest in non-disclosure and interest in access for litigation – Relevant factors – Documents not sufficiently relevant and do not have important bearing on issues in the case – Evidence Act 2008 (Vic) s 130.
ADMINISTRATIVE LAW-procedural fairness-opportunity given to make submissions
CRIMINAL LAW-return of seized property-nature of application
CRIMINAL LAW-search warrants-legality unaffected by non-service of seizure notice
EVIDENCE-public interest immunity- applies to evidence regarding current police investigations
PUBLIC INTEREST IMMUNITY – where principal proceedings challenge validity of search warrants and crime scene warrant – where notice to produce issued seeking documents relevant to the issue of warrants – where claim for public interest immunity made over part of the material – need to establish legitimate forensic purpose – whether stated purpose amounted to “fishing” – no legitimate forensic purpose established – where balancing exercise would have favoured the claim being upheld in any event – claim upheld.
CRIMINAL LAW – Charge of refusing to take an oath or make an affirmation contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 – Collateral challenge to the validity of the Act and a coercive powers order and a custody order made under the Act, pursuant to a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 to quash the charge.
PRACTICE AND PROCEDURE – Evidence – Subpoena – Legitimate forensic purpose – Public interest immunity – Claim that production of documents would prejudice the investigation or prosecution of an offence – Claim upheld – Evidence Act 2008 ss 130, 131A.
APPEAL – criminal – appeal against interlocutory judgment or order – ruling with respect to admissibility of evidence not a judgment or order – whether ruling on objection to production of documents in answer to subpoena is amenable to appeal – Criminal Appeal Act 1912 (NSW), s 5F; Evidence Act 1995 (NSW), s 131A
EVIDENCE – public interest immunity – whether party called to produce material not the party asserting public interest immunity – discussion of State of New South Wales v Public Transport Ticketing Corporation  NSWCA 60; Derbas v R  NSWCCA 14 – Evidence Act 1995 (NSW), ss 130 and 131A
EVIDENCE – public interest immunity – offender sought material relating to conduct of suspected informer for use at sentencing hearing – whether public interest immunity capable of being overcome for the purposes of sentencing – whether appellate court is in a position to perform requisite balancing exercise – whether offender demonstrated a real and not hypothetical issue with respect to sentence – Evidence Act 1995 (NSW), s 130
Evidence Act 1995 (NSW), ss 130, 131A
PUBLIC INTEREST IMMUNITY – s 130(1) Evidence Act – Balancing test – Police Guidelines for Negotiation – Negotiation Incident Form
EVIDENCE – where proposed cross-examination in civil proceeding involved disclosure of basis of ASIO adverse security assessment – where public interest immunity claimed – where disclosure of relevant documents not sought – where information to be adduced oral in form – where knowledge of witness derived from briefing document of Director-General of Security – where proceeding concerns psychiatric harm caused by ongoing immigration detention of applicant – where adverse security assessment cause of ongoing detention – whether oral evidence falls within “class” of documents protected from disclosure by public interest immunity – public interest balancing exercise – Evidence Act 1995 (Cth), s 130.
Held: that the public interest immunity claim be upheld and a direction made that the information not be adduced as evidence.
CRIMINAL LAW – leave to appeal against interlocutory order – public interest immunity – application for production of a document disclosing confidential police informer – balancing exercise – common law applied – whether disclosure of identity of informer would assist accused in defence – relevance of potential consequences to informer if identity disclosed – claim to immunity from production upheld
CRIMINAL LAW – Appeal – where accused pleaded guilty to two counts of supplying large quantity of prohibited drug – where accused sought to ascertain role of third party in relation to his involvement in the offences to which he had pleaded guilty – where police informed Director of Public Prosecutions they held information “which might reasonably be expected to assist in the case for the prosecution or the case for the accused person” but that that material was subject to a bona fide claim of privilege, public interest immunity or statutory immunity – whether s 15A Director of Public Prosecutors Act 1986 obliged police to produce that information to Director of Public Prosecutions –
CRIMINAL LAW – prosecutor’s duty to act fairly – duty of disclosure – whether prosecutor should disclose to accused existence of material possibly relevant to accused’s defence but subject to claim of public interest immunity –
CRIMINAL LAW – sentence – stay of sentencing proceedings – prosecutor’s duty of disclosure – whether sentencing proceedings should be stayed until DPP obtains from police information in relation to third party’s role in his involvement in the offences to which he had pleaded guilty – avoidance of potential miscarriage of justice –
STATUTORY INTERPRETATION -whether permissible to use subordinate legislation to construe statute –
WORDS AND PHRASES – “disclose”
13 It is common ground, on the basis of that evidence, that there is a public interest in preserving secrecy and confidentiality in relation to the information contained in the affidavit and in documents exhibited to the affidavit, which the Commission will also seek to tender on the basis that the orders proposed relate to it as well. The first applicant opposes the reading of the affidavit and the tender of the documents on the basis that they are subject to public interest immunity, which it is not open to the Commission to or anyone else to waive. Specifically, the first applicant refers to s 130 of the Evidence Act 1995 (Cth), which provides that if the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the Court may direct that the information or document not be adduced as evidence.
PRACTICE AND PROCEDURE – Preliminary discovery – Whether sufficient information to enable plaintiff to decide whether to commence proceedings – Whether reasonable grounds to believe that plaintiff may have right to obtain relief against defendant – Where relevant document that the plaintiff would inspect is privileged from inspection under the principles of state interest immunity – Discretionary considerations – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 32.05.
EVIDENCE – State interest immunity – Document prepared for and considered by committee of Cabinet – Business case for major State project – Whether document disclosing, or enabling to be ascertained, the existence or identity of confidential information relating to the administration of a law of a State, or disclosure which may prejudice the proper functioning of the government – Evidence Act 2008 (Vic) ss 130, 131A.
PROCEDURE – judgment and orders – suppression orders – reasons for decision – Court Suppression and Non-publication Orders Act 2010 – Local Council – whether complaint against a councillor is a protected disclosure under the Public Interest Disclosures Act 1994 – whether complaint falls under s 130(4)(e) of the Evidence Act 1995 – whether complaint is protected by public interest immunity – whether privilege was waived – complainant’s name inadvertently disclosed – competing public interests – complainant’s name suppressed – orders made
PRACTICE AND PROCEDURE – Notice to Produce – public interest immunity – proceedings for judicial review of exclusion order by Commissioner for Corrective Services – claim for public interest immunity over some documents relied upon by the Commissioner for his decision – whether s 130 Evidence Act applies – whether information and documents concern “matters of state” – balancing exercise between public interest in disclosure and preserving confidentiality – claim of public interest immunity upheld.
PROCEDURE – Discovery and interrogatories – notice to produce – public interest immunity – whether should inspect documents – whether should read affidavit – revelation of methods of operation and identity of sources of information
PROCEDURE – civil – pre-trial discovery – public interest immunity – principles to be applied – Commonwealth v Northern Land Council  HCA 24;  HCA 24; 176 CLR 604 considered.
STATUTORY INTERPRETATION – Evidence Act 1995 (NSW), ss 130 and 131A – meaning of “a person” – whether State a person for the purposes of ss 130 and 131A.
ADMINISTRATIVE LAW – revocation of security licence by Commissioner of Police – application for review of decision to the Administrative Decisions Tribunal (“ADT”) – ADT required by s 29(3) of Securities Industries Act 1997 (NSW) (“SI Act”) to ensure that it does not disclose the existence or content of “criminal intelligence” without approval of the Commissioner – Commissioner relied on criminal intelligence – whether ADT bound or empowered to adopt a “special advocate” procedure to represent the review applicant’s interests – whether the Commissioner’s refusal to approve disclosure of the criminal intelligence was amenable to judicial review – whether the Commissioner was bound to consider the review applicant’s request for approval to disclosure – powers and duties of the ADT to afford procedural fairness in face of confidentiality regime.
CONSTITUTIONAL LAW – whether s 29(3) of the SI Act is unconstitutional because it purports to deny the supervisory jurisdiction of the Supreme Court – whether the constitutional issue is premature – application of principles in Kirk  HCA 1; (2010) 239 CLR 531 – difficulties facing applicant for judicial review do not establish a denial of the supervisory jurisdiction
CRIMINAL LAW – sexual assault – sexual intercourse without consent – unlawful assault with intent to engage in sexual intercourse – theft – two complainants – two separate incidents – no direct connection between incidents – knowledge of lack of consent – circumstantial case – lack of identification evidence – verdict of not guilty entered for first complainant – lies of accused – lack of credibility – verdict of guilty entered for second complainant
CRIMINAL LAW – sexual intercourse without consent – unlawful assault with intent to engage in sexual intercourse – duplicitous charges – no verdict entered
EVIDENCE LAW – DNA analysis – most significant evidence – flaws in the process of DNA analysis – overloaded analysing machine – reliability of probability ratio – lessens probative value – 9 loci standard – partial match – supports a conclusion that the accused could not be excluded – does not prove beyond a reasonable doubt the identification of the accused
PRACTICE AND PROCEDURE – discovery – public interest immunity
Evidence Act 1995 (Cth) s 130
Practice and procedure
Major litigation concerning Public Transport Ticketing contract with Integrated Transit Solutions
Dispute arising from plaintiff’s decision to terminate contract for the design, build and installation of an integrated Smartcard-based Ticketing and Fare payment system for public transport in the greater Sydney area
Claim by the State of New South Wales for an order excusing plaintiff from making available particular documents for inspection by defendants on basis that they relate to matters of State
Claim by defendants that plaintiff and State have taken a selective approach to the documents over which a claim has been asserted and that documents recording communications between plaintiff and New South Wales Government have been made available where it suits the purposes of the plaintiff to have them available in the proceedings and have been withheld where those purposes are not served
Material legal principles
Onus rests upon State to establish that material documents relate to ‘matters of State’ and that the balancing test favours non-production of material documents
PRACTICE AND PROCEDURE
application to set aside Order for Production
Order for Production addressed to ASIC requiring disclosure of documents provided to it by Hong Kong Securities and Futures Commission in connection with enquires made on ASIC’s behalf in Hong Kong in relation to certain fund management schemes and individuals
whether secrecy provisions in s 127 of Corporations Act 2001 prevented disclosure under Order for Production
whether public interest immunity privilege available to restrain production
production to court under Order for Production is not prevented by s 127
public interest immunity does not apply to prevent disclosure
59 Mr Parker, in response, noted that s 130 of the Evidence Act 1995 (NSW), which permits the exclusion of evidence relating to matters of state where the public interest in preserving its secrecy or confidentiality outweighs the public interest in its admission, sets out various circumstances in which information is taken to relate to matters of state and that those matters are all to be tested having regard to Australian governmental interests. (Mr Parker conceded the possibility, far-fetched though he suggested it was, that the production by Australian regulators of documents provided to those Australian regulators by overseas regulators might give rise to such a privilege if such disclosure would damage Australian governmental interests but submitted that the mere fact that a document related to events overseas or activities in Hong Kong was not of itself a matter of state.
64 Not only am I not satisfied that it has been shown that documents the subject of the Order for Production are documents in respect of which public interest immunity is likely to attach, this is a case where neither ASIC nor the foreign regulatory body which produced those documents to ASIC raises any objection to production of the documents (thus seemingly forestalling any argument based on the perceived hindrance to future inter-regulatory cooperation between those regulatory bodies). The Multilateral Memorandum of Understanding itself contemplates that (subject to compliance with the contemplated procedure, which I am informed by Mr Halley was duly undertaken in this case) information produced to the SFC under the secrecy provisions of the applicable Hong Kong legislation may nevertheless ultimately be disclosed or publicly released in some fashion.
ADMINISTRATIVE LAW – administrative tribunals – procedure – distinction between stay of orders and order temporarily reversing administrative decision – [Administrative Decisions Tribunal Act 1997] (NSW), s 60(2)
PROCEDURE – judgments and orders – stay of orders – distinction between stay of orders and order temporarily reversing reviewable decision
STATUTORY INTERPRETATION – purposive approach – statutory derogation from procedural fairness – tribunal obliged to prevent disclosure when hearing application for review of administrative decision – whether obligation applies to hearing of application for ‘stay’ of administrative decision pending review – [Security Industry Act 1997] (NSW), s 29(3)
WORDS & PHRASES – “criminal intelligence report” – “otherwise affecting the operation of the decision under review”
On 23 July 2009, the Commissioner of Police revoked licences held by the applicants under the Security Industry Act 1997 (NSW). The applicants lodged an application within the Administrative Decisions Tribunal (“the Tribunal”) for review of the revocation decision, as well as for a stay of the decision under s 60(2) of the Administrative Decisions Tribunal Act 1997 (NSW) (“the ADT Act”), pending the determination of the review. On 30 July, Deputy President Hennessy heard the stay application, declined to grant it, and set down the hearing of the review application for 17 August. During the hearing of the application, her Honour admitted and took into consideration a confidential exhibit, involving “criminal intelligence reports or other criminal information”, which was not provided to the applicants. This course of action was taken in accordance with the obligations imposed upon the Tribunal by s 29(3) of the Security Industry Act, which applied in circumstances where the Tribunal was “determining an application for review of any decision … to revoke a licence.”
On 4 August, the applicants lodged an application to appeal to the Appeal Panel against the refusal of the stay, on the basis that her Honour had erred in holding that s 29(3) applied to the hearing of the stay application. The appeal was allowed on 11 August, and the matter remitted to Deputy President Hennessy, who on 13 August granted the stay.
On 12 August, the Commissioner filed a summons in the Common Law Division seeking leave to appeal against the Appeal Panel’s decision. On 16 December Rothman J quashed the decision of the Appeal Panel. The applicants now seek leave to appeal from the decision of Rothman J.
The issue for determination on appeal was whether the obligation upon the Tribunal imposed by s 29(3) of the Security Industry Act applies to the hearing of an application for a stay of the Commissioner’s decision.
The Court held, dismissing the appeal:
1. An order in the nature of a ‘stay’ granted pursuant to s 60(2) of the ADT Act is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is thus distinguishable from the common usage of a stay, granted to preserve the status quo or the subject matter of an appeal, pending a final determination of that appeal: , –, .
McBride v Walton (unreported, NSWCA, 27 August 1993), referred to.
2. Neither the specific language of s 29(3), nor its statutory context or purpose, supports a construction that would render the determination of a ‘stay’ application a discrete and separate function to that of determining an application for review of a reviewable decision: –, , , , , –.
Commissioner of Police v Gray  NSWCA 49; 74 NSWLR 1, referred to.
3. Section 29(3) accordingly applies to the hearing of an application for an order that has the effect of temporarily reinstating a licence under the Security Industry Act that has been revoked when that reinstatement is made, pending the determination by the Tribunal of an application for review of that revocation: , .
public interest immunity
whether documents would disclose Cabinet deliberations
whether court should inspect documents
whether draft Question Time briefs are protected
meaning of “impeached”
client legal privilege
method of proving privilege
Evidence Act 1995 (NSW), ss 117, 118, 130
JUDICIAL REVIEW – administrative decision made under an enactment – whether refusal to issue an order for inquiry into past conviction affects legal rights – there was no right to the issue of an order both before and after the decision was made – Wednesbury unreasonableness – whether decision is based on findings or inferences wholly unsupported by some probative material or logical grounds
HELD – the decision to refuse to order an inquiry into the conviction of the plaintiff was not a decision made under an enactment and therefore not subject to judicial review
Evidence Act 1995 (Cth) ss 84, 90, 130
 FCA 1983
PRACTICE AND PROCEDURE – Discovery of documents –Claim of public interest immunity – Australian Capital Territory government documents – Cabinet deliberations, drafting instructions to Parliamentary Counsel’s office – need to weigh public interest in confidentiality of documents against public interest in administration of justice
Evidence Act 1995 (Cth), s 130
Criminal Law – Appeal and New Trial – rule 4 – objection not taken to evidence – whether judge should have rejected evidence relying upon s 137 of Evidence Act – whether evidence prejudicial – Summing Up – whether judge failed to warn jury against tendency reasoning – Evidence – scope of s 137, whether requires judge to reject evidence where objection not taken – Sentencing – Malicious wounding and child abduction – whether sentences manifestly excessive.
Evidence Act 1995 – ss 41, 66, 116, 130, 137
PRACTICE AND PROCEDURE – non-compliance with rules – whether letter from applicant invoked Court’s jurisdiction – power exercised to waive non-compliance with rules.
MIGRATION – cancellation of visa – failure to pass character test – whether respondent’s decision to cancel visa a decision made under the Migration Act – procedural fairness – whether partial mis-description of offences and failure to grant interview to applicant led to jurisdictional error – certain adverse information in documents (“the Documents”) placed before respondent at time decision made to cancel visa – at trial of application respondent claimed privilege (public interest immunity) in respect of the Documents – asserted that existence of that privilege self-evident on the face of the Documents – unrepresented applicant called for production to him of the Documents – respondent consented to Court examining the Documents – balancing of the relevant public interests – claim for privilege rejected and no direction made under s 130(1) of the Evidence Act 1995 (Cth) – the Documents admitted into evidence – order made restricting access to the Documents to Judges of the Court – whether respondent denied procedural fairness to the applicant by not disclosing the substance of the Documents to the applicant regardless of whether they contained “non-disclosable information”.
Evidence Act 1995 (Cth), s 130
WARRANTS – authorised seizure of documents – questions of practice and procedure – limited disclosure of documents under claim of public interest immunity – not to be disclosed to counsel until immunity claim rejected.
Purported order made in the Local Court on 29 May 2001 requiring the Commissioner of Police to pay to Harry Charles Fandakis costs in the amount of $9,000 is quashed.
EVIDENCE - Amending Bill before Parliament- Inadmissible as to meaning of current legislation. EVIDENCE - Privilege- Communications within Department. PROCEDURE - Discovery- Notice to party to produce documents- What specificity required- Supreme Court Rules Pt 23(2).
Evidence Act 1995, s 130
National security; Public Interest Immunity; Appointment of Special Counsel to assist in assessment of claims
Claim for public interest immunity by New South Wales Police Service in respect of subpoena issued by defendant re interview of plaintiff on 19 January 1999
Whether required to produce notes made by members in course of their deliberations
Public interest immunity
Evidence Act 1995 ss 129 & 130
Privilege – public interest immunity – ss 129, 130 Evidence Act 1995 (NSW) – certificates and report of Medical Assessor under Motor Accidents Compensation Act 1999.
Criminal Law – public interest immunity – confidential police informer – test to be applied
Criminal Law – public interest immunity – confidential police informer – claim for immunity refused by order of trial judge – whether order warranted
CRIMINAL LAW – Appeal against conviction – whether jury’s verdicts were inconsistent – CRIMINAL LAW – subpoenas – identity of police informers – whether legitimate forensic purpose – CRIMINAL LAW – public interest immunity – police informers – whether defence could show that desired evidence would help demonstrate innocence – EVIDENCE – whether evidence of guns at one location is tendency or coincidence evidence that is probative of knowledge of guns at another location – whether admission of evidence led to a substantial miscarriage of justice – whether to apply the proviso in s 6(1) of the Criminal Appeal Act – EVIDENCE – definition of identification evidence – recognition evidence – whether trial judge’s directions complied with s 116 and s 165 of the Evidence Act.
Evidence Act s 97 and s 98
Public interest immunity – Aboriginals
Criminal Law – Conspiracy to effect a purpose that is unlawful under a law of the Commonwealth – Proposed borrowing in contravention of Financial Agreement 1927 – The Constitution (63 & 64 Vict. c. 12), ss. 57, 61, 105A, 128 – Constitution Alteration (State Debts) 1928 – Financial Agreement 1927, cll. 3, 4, 6 – Financial Agreement Act 1928 (Cth), s. 2 – Financial Agreement Validation Act 1929 (Cth) – Financial Agreement Act 1944 (Cth), s. 3 – Crimes Act 1914 (Cth), s. 86.
Evidence – Subpoena duces tecum – Claim of privilege by Crown and individual litigant – Scope of privilege – Cabinet documents and similar papers – Prior publication by tabling in Parliament and otherwise – Disclosure of proceedings of Parliament without leave – Private prosecution – Difficulty of proving charges without production of documents – Form of affidavits claiming privilege – Balance of competing interests – Justices Act, 1902 (N.S.W.), s. 26.
Declaration – Jurisdiction in relation to criminal proceedings – Commital proceedings – Claim for declaration by informant – Exercise of discretion – Supreme Court Act, 1970 (N.S.W.), s. 75 – High Court Rules, O. 26, r. 19.
Defamation – Discovery preliminary – Newspaper – Alleged defamatory publication – Identity of journalist’s informants not disclosed – Application for disclosure for purpose of commencing proceedings – Newspaper rule – Application for preliminary discovery – Rules of the Supreme Court of New South Wales Pt 3, r 1(1).
Practice – Discovery – Inspection – Civil proceedings – documents containing notes by cabinet officers of cabinet deliberations – Application to inspect – Public interest immunity – Inspection by court – Confidential inspection by legal advisers.
Evidence – Subpoena duces tecum – Crown documents – National security – Public interest.
Criminal Law – Evidence – Admissibility – Cross-examination – Relevant facts – Membership of organization by accused – Cross-examination tending to establish that organization approved violence or its members were prepared to commit acts of violence.
Evidence – public interest immunity – exclusion of matters of State – public interest in protecting confidential and restricted Aboriginal knowledge – public interest in not denying access to relevant evidence in the administration of justice – Evidence Act 1995 (Cth), s 130
Constitutional Law – inconsistency – whether State law prohibiting the divulging of Aboriginal tradition in contravention of Aboriginal tradition inconsistent with the Commonwealth Evidence Act – Commonwealth Constitution s 109
Constitutional Law – whether laws of the Commonwealth otherwise provided – s 35 of the Aboriginal Heritage Act 1983 (SA) and Commonwealth Evidence Act – Judiciary Act 1903 (Cth), s 79
Evidence Act 1995 (Cth), ss 4, 8(1), 12, 48(4), 56(1), 130, 135, 142
PRIVILEGE – common law public interest immunity – prison medical records held by government department – claim by Crime Commission under Criminal Assets Recovery Act 1990 – material sought to assist the defendant at trial – whether public interest in maintaining confidentiality of matters raised in course of psychiatric assessment of prisoner – whether material was obtained coercively – protection of governmental function – caution in discovering new categories of public interest immunity – professional confidential relationship privilege under the Evidence Act 1995 . (ND)
Interlocutory judgment and orders rejecting claim of public interest immunity vacated